Appeal No. 1997-2569
Application No. 08/469,578
The examiner recognizes that both Gibbs and Lee fail to
teach using electrostatic or acoustic energy to effect the
mixing disclosed therein. Nevertheless, the examiner
concludes (Answer, pp. 4-5):
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to provide a vibratory agitator in place of the air-
driven agitator in the device of Gibbs because
vibratory agitators achieve mixing in droplets on
moving test strips as taught by Lee.
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to provide a sonic source as the vibratory agitator
in the modified device of Gibbs and Lee because a
sonic source is suitable for reagent mixing by
vibration as taught by Woodbridge.
Appellants argue that the combination of Gibbs, Lee and
Woodbridge proposed by the examiner amounts to a hindsight
reconstruction of the claimed invention. First, appellants
argue that there is no motivation to use vibratory agitation
as in Lee to mix the droplets in Gibbs since Lee uses a gel
which confines the droplets during mixing. Particularly,
appellants argue (Brief, p. 6):
The forces acting on the drop of whole blood in Lee
are significantly greater than those found in Gibbs.
The skilled artisan could reasonably conclude that
vibratory mixing of the type used by Lee would not
work for the drop of liquid in Gibbs.
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